Immigration officials have warned that wait times at airports may increase due to federal budget cuts that went into effect on March 1. (Photo courtesy of U.S. Customs and Border Protection)

The sequester—federal budget cuts designed to save $85.4 billion in fiscal year (FY) 2013—has begun to take its bite on many aspects of immigration enforcement in the United States. The belt-tightening, including an 8.2 percent cut in domestic spending, affects a wide range of immigration functions, including visa processing, border security, screening at ports of entry, and the operation of immigration courts. However, it was the government's decision to release immigration detainees on bond or to less costly supervision programs in late February that has generated a firestorm—and in the process, brought new focus to immigration detention policy writ large.

Like all agencies facing the prospect of sequester, the Department of Homeland Security (DHS) devised a plan to offset these cuts, which included an estimated reduction of $595 million to Customs and Border Protection (CBP) and $295 million to Immigration Customs and Enforcement (ICE), according to an Office of Management and Budget report. According to CBP, the reduction has required a hiring freeze, reduction or elimination of overtime and compensatory time, and an agency-wide furlough (temporary unpaid leave for some employees) which is set to begin in mid-April. A White House report indicates that CBP will downsize its workforce by 5,000 Border Patrol agents and 2,750 other CBP officers.

While the loss of border security agents will take some time to have any real impact, large airports have already witnessed major delays in the screening of incoming passengers. Flights into John F. Kennedy and Miami International airports have reported over two to three hours' waiting time to screen passengers, mostly as a result of cuts in overtime staffing. Beginning last week, some employees have been furloughed, which will likely increase wait times at more airports.

Additionally, the Department of Justice will see $15 million in cuts to the immigration court system. The State Department, which processes visa applications abroad, has warned that the sequester will limit the department's ability to issue visas in a timely fashion, placing increased burdens on the legal immigration system.

Releasing Detainees

Compared to all other immediate and impending consequences of the sequester for immigration enforcement, the action that has drawn the sharpest—and almost exclusive—attention is DHS' decision in late February to release noncitizens from ICE detention facilities either on bond or to federal supervision programs, including Alternatives to Detention (ATD). ATD programs use cost-effective methods, such as electronic ankle bracelets and weekly check-ins, to ensure that enrolled noncitizens appear at immigration court hearings and/or comply with removal orders.

The widely publicized decision was quickly denounced by a range of GOP lawmakers, including House Speaker John Boehner (R-OH) and House Judiciary Committee Chairman Bob Goodlatte (R-VA). Both accused the administration of jeopardizing public safety by releasing criminals into the community, and characterized the move as politically motivated to promote the president's budget agenda by invoking fear. Various GOP lawmakers have also demanded more information from DHS about who was released and why. Nearly all Democratic lawmakers have remained silent on the issue.

Meanwhile, White House and DHS officials have defended the release of detainees. They stated that career ICE officials made a routine, cost-driven decision that was consistent with actions being taken by other federal agencies in response to the sequester.

At a hearing of the House Appropriations Committee, ICE Director John Morton told Congress that only low-risk and non-dangerous detainees were released, and only after a case-by-case review. Indeed, some released detainees have been brought back to detention upon further review of their cases. ICE claims that the move is in line with the agency's detention and enforcement priorities that have been established in recent years. All the released detainees will remain in removal proceedings.

After initially declining to specify the number of detainees released, ICE has now confirmed that number to be 2,228, spread out evenly over three weeks in February. Who they are and factors that led to their release remain publicly unknown. But the fact that the decision to release any detainees became a major flash point illustrates how contested and politically charged the immigration issue remains, especially for the GOP. Many saw this move as out of the norm, and some argue that the timing has undermined the fragile bipartisan goodwill that members of both parties in Congress have worked so hard to forge and maintain over efforts to achieve immigration reform.

Detention and its Alternatives

The political fallout aside, ICE's move in anticipation of the March 1 budget cuts has prompted a closer look at immigration detention policies more broadly—and to the use of ATD programs in particular.

The immigration detention population has risen steadily in recent years—from 256,842 in FY 2006 to 429,247 in FY 2011. Two main reasons factor into this: First, Congress requires a minimum use of bedpace on a daily basis, and this mandate has risen from 20,800 beds in FY 2006 to 34,000 in 2012. Secondly, federal law mandates detention of noncitizens who have committed a broad category of crimes.

ATD programs were first authorized by Congress in 2002, and have garnered broad support over the years, with many criminal defense and immigrant advocacy groups calling for their expansion. As of June 2012, 23,289 noncitizens were enrolled in one of two ATD programs: a Full Service (FS) program, which uses remote electronic monitoring and assigns each enrollee to a caseworker who makes home and office visits; and a Technology Assisted (TA) program, which employs only electronic monitoring.

Beyond lauding ATD programs as more humane, proponents of expanding them also point out that they are both successful in terms of court hearing attendance and are more cost-efficient than detention. According to Human Rights First, 96 percent of those enrolled in ATD programs appear at their court hearings. In terms of cost, ICE estimates that the average daily cost of detaining an individual is $119. In contrast, ATD programs carry a daily cost of between 17 cents and $17.78 per person.

Supporters of the existing model view detention as a necessary element of immigration enforcement and crucial to public safety.

While debate is taking place about the use of ATD programs, current law limits participation. Noncitizens subject to mandatory detention are not eligible for enrollment in ATD programs even though not all of them are dangerous or high-risk. Many experts have argued that if ICE treated ATD as an "alternative form of" detention rather than an "alternative to" detention, certain low-risk, non-dangerous mandatory detainees could also be placed on supervised release.

Detention has received far less notice than other components (such as removal) of ICE's evolving policy of prioritizing certain noncitizens for enforcement actions. A series of agency memoranda issued in recent years have prioritized the removal of certain noncitizens: those considered a public safety or national security threat, repeat immigration violators, and recent border crossers. In June 2011, ICE officials were further instructed to exercise prosecutorial discretion in deciding whom to place in removal proceedings and whom to ultimately deport. The same memo also states that prosecutorial discretion "applies to deciding whom to detain, release on bond, supervision, personal recognizance, or other condition."

Additionally, very little notice has been given to a new automated, computerized tool called the Risk Classification Assessment that ICE has quietly been rolling out since July 2012. The system, which will be activated nationwide in 2013, is used during the ICE book-in process to determine whether an individual being placed in removal proceedings is a flight or public safety risk. ICE then decides determines whether he or she should be detained, released on bond, enrolled in an ATD program, or released without posting a bond. The goal of the Risk Classification Assessment is to apply uniform standards that are in keeping with ICE's enforcement priorities during detention decisions. It is a major reform that, if used broadly and over time, could indicate a need to lower mandatory ICE detention levels and expand use of ATD programs.

During the past few years, DHS has shown increasing interest in ATD programs. Between June 2011 and June 2012, enrollment in ATD programs grew by 23 percent, or over 4,300 persons. In addition, while requesting its FY 2013 budget, the agency asked Congress to reduce the number of funded beds to 32,800 in order to compensate for increased spending on ATD programs. And last month, as the storm gathered upon the release of detainees to ATD programs, Homeland Security Secretary Janet Napolitano stated that more qualifying detainees will be placed on supervised release in the coming months. Whether this trend will continue remains to be seen.

Stateside Processing of I-601 Waivers Begins. On March 4, a new rule went into effect allowing immediate relatives of U.S. citizens to apply for and obtain I-601 "provisional unlawful presence" waivers from within the United States, before they depart to attend their immigrant visa interviews at a consulate abroad. Previously, these applicants were required to complete the lengthy process of obtaining waivers while outside the United States, causing families to be separated for months or years. Such waivers are commonly required when an individual enters and resides in the United States unlawfully for more than six months and then leaves the country, triggering an inadmissibility bar of three or ten years. I-601 waivers are granted when it can be demonstrated that the applicant's U.S. citizen spouse or parent will suffer extreme hardship if the applicant is not permitted to immigrate to the United States. Waiver applicants will still be required to leave the country to obtain their immigrant visa at a consulate in their home country, a process that typically takes several weeks. However, the new policy, first announced by the Obama administration in 2011, is designed to avoid hardship to U.S. citizens, reduce the amount of time families spend apart during the application process, and remove separation as a deterrent for those who wish to pursue an application for lawful permanent residence (also known as obtaining a green card) but require an I-601 waiver to accomplish that.

Supreme Court Rules on Retroactivity of Padilla. In February, the Supreme Court ruled in Chaidez v. United States that its 2010 decision in the landmark case, Padilla v. Kentucky, cannot be applied retroactively to individuals who were criminally convicted before March 2010. Padilla held that Sixth Amendment rights are violated when defendants in a criminal proceeding are not advised of the immigration consequences of their guilty plea. In Chaidez, a lawful permanent resident pleaded guilty to fraud (which is an aggravated felony if the loss to the victim exceeds $10,000) in 2007, after her lawyer failed to inform her that the conviction would subject her to deportation. She was placed in removal proceedings in 2010 when she applied for naturalization, and attempted to vacate the fraud conviction on the grounds of the Padilla ruling. A U.S. district court ruled in favor of Chaidez, but the U.S. Court of Appeals for the 7th Circuit reversed the decision, which the Supreme Court upheld in its 7-2 opinion.

CBP Issues Policy Guidance on Enforcement Activities at Community Establishments. On January 18, CBP Deputy Commissioner David V. Aguilar issued a memorandum limiting CBP officers and agents from conducting immigration enforcement actions at or near schools, places of worship, community centers, hospitals, or similar establishments. The guidance does not prohibit apprehensions at such locations, but requires agents to obtain advance written approval from agency office directors and chiefs if they anticipate the need to make an apprehension at a community establishment, except under urgent circumstances. The guidance does not limit or otherwise apply to CBP operations that are conducted at or near the border.

New Report Finds U.S. Citizens Netted by ICE. A new report from the Transactional Records Access Clearinghouse (TRAC) on ICE immigration detainers found that from FY 2008 to FY 2012, ICE issued approximately one million detainers, including 834 on U.S. citizens. The findings have evoked deep concern as it is unlawful for DHS to detain U.S. citizens. The study also found that 77.4 percent of the detainers were issued on individuals with no criminal record at the time of or after the detainer was placed. A detainer is a notice that DHS issues to law enforcement authorities requesting that an arrestee be held following their release so that ICE can take them into custody. Detainers are most often triggered when law enforcement agencies send arrestees' fingerprint records to the Federal Bureau of Investigation (FBI), which automatically checks the print against DHS immigration databases. The nationwide deployment of ICE's Secure Communities program has made that process routine.

USCIS Has Granted Nearly 200,000 DACA Approvals. Last month, USCIS released updated statistics on the Deferred Action for Childhood Arrivals (DACA) program. Between August 15 and February 15, the agency received 438,372 applications and approved 199,460. The average number of requests per day in February was 1,517, a number that is on par with January's rate but indicates a marked slowdown in applications since the beginning of 2013. The DACA program, implemented by the Obama administration through executive action, grants work authorization and protection from deportation to certain young unauthorized immigrants who came to the United States as young children, have pursued an education, and pose no threat to public safety.

North Carolina to Offer Unauthorized Immigrants Specially Marked Drivers' Licenses. On March 25, North Carolina's Department of Transportation will begin issuing driver licenses to DACA beneficiaries that are specially marked with a pink stripe and the words "no lawful status." The state initially determined that individuals with deferred action under DACA were ineligible for licenses. However, DHS' recent clarification that DACA beneficiaries are considered to be "lawfully present" forced the state to revisit the decision because, according to North Carolina state law, a driver's license will be issued to anyone who holds valid federal documentation of their "legal presence" in the United States. The state's plan has elicited outcry from those who believe that the separately marked licenses are discriminatory, gratuitously single out DACA beneficiaries, and will expose their immigration status every time they present the license for identification purposes. North Carolina's Governor and Transportation Secretary have defended the policy, saying that the card represents a pragmatic compromise to a drawn out debate between those who believe DACA beneficiaries should be issued a regular license and those who believe they should not be granted a license at all.

New York City to Further Limits Cooperation on ICE Detainers. New York City Mayor Michael Bloomberg is expected to sign two bills the City Council passed in February that prohibit law enforcement authorities from honoring ICE detainer requests, except in circumstances involving serious criminals or national security threats. The two bills build on similar measures enacted by the City Council in 2011 in response to the Secure Communities program, and are meant to prevent those who are arrested for low level offenses such as traffic violations from being deported as a result of their offense. Supporters of the bill say that it will reduce the impact of the federal government's deportation and detention practices on families. However, it is unclear what impact the bills will actually have, as they closely mirror directions issued by ICE Director John Morton in a December 2012 memorandum that instructs agents to issue detainers only on high priority noncitizens, including serious criminals, public safety or national security threats, and repeat immigration law violators.